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Thursday, December 6, 2018

Day 15 write up: Not even the end of the beginning

Part of my route to work for the last five week, Inner Temple, Lawyerland
Fifteen days doesn't sound like much, but I feel like I've been through the wringer. Trying to synthesise and process the volumes of information which have come out of this trial is going to take weeks. I will give you a quick summary of what happened today and then take you to the next stage, which in many ways is more interesting.

Day 15 was, like day 14; the methodical demolishing of the edifice which the JFSA, Freeths and Patrick Green QC have built up over the past month or so. Mr Cavender QC cut a knowledgeable, urbane and assured presence. I sensed he was in his comfort zone - delighted to take the court step by step through the apparent flaws in the JFSA's claim, but equally happy to think on his feet and spar with the judge as the situation required. He was convincing as he pursued the same argument as yesterday. Which is:

The Post Office has the right to do as its contract suggests. There is nothing in the contract which is obscure, hidden or designed to spring traps on Subpostmasters. It is all there in black and white. If you didn't get that contract or didn't ask for it or didn't read it before lumping your life savings/nest egg/pension fund into that deal, well...

... who goes into business, who risks almost everything without asking for their contract or taking legal advice or both?

You can complain after the event to the high heavens, but in business-to-business agent/principal situations you look at everything before you put pen to paper.

The law assumes you are going to do due diligence and the law assumes due diligence involves reading the contract.

Event Horizon 

This is where thing get weird, though, because if you run the above sentiment alongside the position stated yesterday - that the Post Office is entitled to believe that Horizon's figures are correct because it is generally reliable - you have a recipe for disaster.

A possible unexpected side effect of the Post Office's hardball position on the contract is the warning signals it sends out to existing Subpostmasters. If, contractually, you and your business and your entire family's livelihood are at the whim of a computer system you have no control over, you're f***ed.

Having seen the performances of the procession of employees called to the witness box on behalf of the Post Office there is no way I would let them near my business in a million years. Yet they are authorised to take life-changing decisions with no implications for them, even if they get those decisions catastrophically wrong.

I said in a previous piece: if you are a Subpostmaster and you read the factual information that now exists on the record about the NFSP and you still believe they are looking out for your interests, you are fool (they unfortunately refused to advance a counter argument to that, but I am all ears if there is one).

To the above I would add: if you consider taking on a branch Post Office, and read the factual information that now exists in the public domain about the risks of doing so - you are taking one hell of a gamble, with very little obvious upside. Apart from, er... what was it.... oh yes - footfall, of course.

Respect my Authorities

So how do we get to a judgment? From what I have been able to ascertain, each QC delivers a binder of case law (called the Authorities) to the judge, directing his Lordship to the specific passages in the judgments which each party thinks has a bearing on the law with regard to this case.

Contract law is a well-developed area and there are lots of judgments covering many different business relationships at the Court of Appeal and the Supreme Court which are binding on the High Court.

The judge then asks which judgments the QCs want him to consider at and how they want him to interpret them. The judge may also have his own view on what he thinks important, and he will occasionally mention this - or more likely challenge the QCs on their interpretation of the case law he is presented with. In this way, the judge is not only given the measure of the case, but what both parties say are the parameters in which he should make his judgment.

This trial has generated vast tranches of data. Off the top of my head:

Claim and particulars of claim
Generic Defence
Common Issues and pleadings
Opening statements x 2
Witness statements x 20
Documentation put to witnesses (thousands of pages)
Daily transcripts (ie oral evidence and cross-examination) x15
Closing submissions x 2
Claimant statements 500+
The Authorities

The closing submissions alone are 200+ pages each. The Authorities can be between 20 and 200 pages, the claimant witness statements are vast. Some of the documentation are Post Office manuals which are more than 100 pages long.

The judge doesn't necessarily have to go through every word on every document, but he certainly has to take note of the important ones, and I would say that's probably at least 2000 pages of relevant technical data, spoken and written personal testimony and nuanced legal argument, much of which he will have to read more than once.

His job is to funnel all that information into his decisions on the 23 Common Issues. It is a big task. I have already uploaded a version of the Common Issues which has a lot of pleading references attached. The judge asked for a clean version. He got that last week. I was issued with it on Monday. Have a read. This afternoon he rather sensibly asked the QCs to give him two more versions of the Common Issues in which each QC states the judgment they wish him to make on each issue.

What next?

At the end of the trial there was quite a bit of what Mr Cavender called "housekeeping". Various documents and bits and bobs were requested and/or ordered. The Post Office found its own encryption of Liz Stockdale's interview impossible to crack, which is great for them as it might have corroborated her witness statement in the same way Louise Dar's lately-discovered interview transcript corroborated hers. The judge has ordered a witness statement from the Post Office on why it has not proved possible to crack their own encryption keys. The judge also asked for a proper flow chart on the process of dealing with a) a Transaction Correction and b) a shortfall when submitting branch accounts.

All this takes us up to Christmas. The judge has ordered a Case Management Conference [CMC] on 31 January 2019 for the third trial and put the parties on notice they can expect a draft judgment under embargo from 14 January 2019 onwards, which gives us a two week window during which the public judgment will be handed down.

The CMC is to decide the date, terms of reference, agree a quantam expert (likely a forensic accountant) and number of claimants to be tried in what will most likely become known as the breach trial.

The judge has a duty to expedite proceedings, but the lawyers obviously want things to last as long as possible as it means more money for them. At one point the judge lost his patience and said he didn't wish to be abrupt or look like he was trying to steamroller the parties, but if it was not possible to try the cases of all six of the Lead Claimants in October 2019 he would schedule a trial for every judicial period thereafter in order to get to a resolution in the case starting in Spring 2020.

On hearing this I (temporarily, m'lud) lost patience with the judicial process. If the only way to steamroller the parties into doing something positive is promise them five weeks in court three times a year until one of them folds then you have a problem.

So - we'll get our first judgment in this epic saga in six or seven weeks, then we'll get a confirmed date and structure of the third trial, then on 11 March 2019 the second Horizon trial starts.

I personally think someone needs to take this process by the scruff of the neck and boot it into the world of politics, media and public affairs or the legal action will continue ad infinitum until one party runs out of money, and I suspect that party will be the JFSA.

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This is the last post I am contractually obligated to write by the terms of the Kickstarter I set up way back in August but I did continue to raise money in the hope I would be able to cover this group litigation on an ongoing basis.

I am delighted to tell you that thanks to the continuing generosity of everyone who pushed the Kickstarter way beyond my wildest expectations and the remarkable success of the paypal tip jar experiment on the www.PostOfficeTrial.com website, I have enough money to cover most of the upcoming Horizon trial, next month's judgment and the case management conference on 31 Jan.

I will continue to work in my own time to develop this website as a resource. There is a lot of indexing and general tidying up to do. I am also very much in the market for guest bloggers. If you have a professional or personal interest in this trial and you want to write something about it please do get in touch. You can be anonymous if you are worried about recriminations! I am particularly keen to get the Post Office and NFSP view (they have both refused formal requests to write something) and I'd also like to hear from serving Subpostmasters.

Secret emailers will continue to get occasional emails and anyone who makes a contribution during this quiet period will be added to the list. Don't forget you can also sign up for free emails on the website (which get you whatever i post on the blog automatically) and read through this blog and the documentation it links to whenever you want!

Thanks again for your support. 

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